Stanley v. Amos

Court of Appeals of Georgia

Stanley v. Amos

53 S.E.2d 568, 79 Ga. App. 297, 1949 Ga. App. LEXIS 641

CourtCourt of Appeals of Georgia

DecidedMay 20, 1949

Docket32394.

StatusPublished

Cited by7 cases

This text of 53 S.E.2d 568 (Stanley v. Amos) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stanley v. Amos, 53 S.E.2d 568, 79 Ga. App. 297, 1949 Ga. App. LEXIS 641 (Ga. Ct. App. 1949).

Pincite

Opinions

Parker, J.

The petition for certiorari showed a lack of diligence on the part of the plaintiff (defendant in the trial court) and her counsel. The case in the trial court had been started on Monday morning, when a jury had been stricken, and was adjourned until the following Wednesday morning. On Wednesday morning when it appeared that another case was on trial, the parties and counsel in this case were ordered back at 3 p. m. on Thursday. The trial judge stated on Wednesday morning that the defendant and her counsel “would be required to make a strict legal presentation of proof under oath for continuance,” in the absence of which the case would be tried. The defendant’s husband was in court and heard this announcement and communicated it to his wife. After the defendant’s husband sustained a fall from his truck and suspected an injury to his hip, about 12:30 p. m. on Thursday, and his wife carried him to the hospital, a period of two hours and a half elapsed before the case was called at 3 o’clock,, during which time counsel did not communicate with his client, nor she with him, or make any effort, so far as the petition for certiorari discloses, to make a legal showing for continuance in accordance with the previous notice given them by the court. These facts appear from the petition for certiorari.

Code § 81-1419 provides that “All applications for continuances are addressed to the sound legal discretion of the court.” Code § 81-1416 is as follows: “In all cases, the party making an application for a continuance must .show that he has used due diligence.” The discretion of a trial judge in granting or refusing a continuance will not be disturbed by the appellate court unless such discretion was manifestly and clearly abused. Clay v. Barlow, 73 Ga. 787 (2); Betenbo v. Brooks, 17 Ga. App. 754 (88 S. E. 411). “To entitle a party to a continuance . . evidence of some character, under oath, must be presented that *301 the absent party was in fact ‘providentially prevented from attending at the trial.’ A statement by counsel of the absent-party in this case, that ‘he had received a letter from his client advising him that he was ill and could not attend court,’ was not a sufficient showing in support of that ground of the motion; and there was no error in overruling the motion for a continuance.” Covington v. Case Threshing Machine Co., 26 Ga. App. 781 (107 S. E. 370). See also Cavender v. Atkins, 2 Ga. App. 173 (58 S. E. 332); O’Barr v. Alexander, 37 Ga. 195.

While the petition for certiorari seems to undertake to assign error on the direction of the verdict against the defendant, an admission is made therein that the verdict was proper unless the petitioner was deprived of her constitutional right to be present when the case was tried. Was the petitioner denied due process of law because of her failure to be in court or to make a legal showing for continuance, as contended by the plaintiff in error? We think that she was not, under the allegations of her petition for certiorari. “When a citizen is accorded a trial in a court of justice according to the modes of procedure applicable to all cases of a similar kind, it can not be said that he has been denied ‘due process of law.’ ” Arthur v. State, 146 Ga. 827 (1) (92 S. E. 637). Also, see Sutton v. Hancock, 118 Ga. 436, 442 (45 S. E. 504); King v. State, 174 Ga. 432 (163 S. E. 168).

The petition for certiorari failed to show that any error of law was committed by the trial judge, and the judge of the superior court did not err in dismissing it.

Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232, Code, Ann. Supp. § 24-3501), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.

Judgment affirmed.

Sutton, C. J., MacIntyre, P. J., Parker, and Townsend, JJ., concur. Felton and Gardner, JJ., dissent.

Free access — add to your briefcase to read the full text and ask questions with AI

Parker, J.

The petition for certiorari showed a lack of diligence on the part of the plaintiff (defendant in the trial court) and her counsel. The case in the trial court had been started on Monday morning, when a jury had been stricken, and was adjourned until the following Wednesday morning. On Wednesday morning when it appeared that another case was on trial, the parties and counsel in this case were ordered back at 3 p. m. on Thursday. The trial judge stated on Wednesday morning that the defendant and her counsel “would be required to make a strict legal presentation of proof under oath for continuance,” in the absence of which the case would be tried. The defendant’s husband was in court and heard this announcement and communicated it to his wife. After the defendant’s husband sustained a fall from his truck and suspected an injury to his hip, about 12:30 p. m. on Thursday, and his wife carried him to the hospital, a period of two hours and a half elapsed before the case was called at 3 o’clock,, during which time counsel did not communicate with his client, nor she with him, or make any effort, so far as the petition for certiorari discloses, to make a legal showing for continuance in accordance with the previous notice given them by the court. These facts appear from the petition for certiorari.

Code § 81-1419 provides that “All applications for continuances are addressed to the sound legal discretion of the court.” Code § 81-1416 is as follows: “In all cases, the party making an application for a continuance must .show that he has used due diligence.” The discretion of a trial judge in granting or refusing a continuance will not be disturbed by the appellate court unless such discretion was manifestly and clearly abused. Clay v. Barlow, 73 Ga. 787 (2); Betenbo v. Brooks, 17 Ga. App. 754 (88 S. E. 411). “To entitle a party to a continuance . . evidence of some character, under oath, must be presented that *301 the absent party was in fact ‘providentially prevented from attending at the trial.’ A statement by counsel of the absent-party in this case, that ‘he had received a letter from his client advising him that he was ill and could not attend court,’ was not a sufficient showing in support of that ground of the motion; and there was no error in overruling the motion for a continuance.” Covington v. Case Threshing Machine Co., 26 Ga. App. 781 (107 S. E. 370). See also Cavender v. Atkins, 2 Ga. App. 173 (58 S. E. 332); O’Barr v. Alexander, 37 Ga. 195.

While the petition for certiorari seems to undertake to assign error on the direction of the verdict against the defendant, an admission is made therein that the verdict was proper unless the petitioner was deprived of her constitutional right to be present when the case was tried. Was the petitioner denied due process of law because of her failure to be in court or to make a legal showing for continuance, as contended by the plaintiff in error? We think that she was not, under the allegations of her petition for certiorari. “When a citizen is accorded a trial in a court of justice according to the modes of procedure applicable to all cases of a similar kind, it can not be said that he has been denied ‘due process of law.’ ” Arthur v. State, 146 Ga. 827 (1) (92 S. E. 637). Also, see Sutton v. Hancock, 118 Ga. 436, 442 (45 S. E. 504); King v. State, 174 Ga. 432 (163 S. E. 168).

The petition for certiorari failed to show that any error of law was committed by the trial judge, and the judge of the superior court did not err in dismissing it.

Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232, Code, Ann. Supp. § 24-3501), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.

Judgment affirmed.

Sutton, C. J., MacIntyre, P. J., Parker, and Townsend, JJ., concur. Felton and Gardner, JJ., dissent.

Cite This Page — Counsel Stack

Bluebook (online)

53 S.E.2d 568, 79 Ga. App. 297, 1949 Ga. App. LEXIS 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanley-v-amos-gactapp-1949.

Opinions

Related

Cite This Page — Counsel Stack